EPIC - Brett M. Kavanaugh and Privacy

Brett M. Kavanaugh and Privacy

The Nominee and Privacy |
Nomination Process |
The Nominee as White House Associate Counsel and Staff Secretary |
The Nomintee's Writings |
EPIC's FOIA Request |
Reports of Other Interest Groups |
General Commentary |

Background

Brett Kavanaugh On July 9, 2018, President Trump nominated Judge Brett M. Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court.

Judge Kavanaugh was born in Washington, D.C and raised in Bethesda, Maryland where he attended Georgetown Prep School and Mater Dei School. He then graduated from Yale College in 1987. In 1990, Kavanaugh graduated from Yale Law School where he was the Notes Editor of the Yale Law Journal.

From 1990-91, Judge Kavanaugh served as a law clerk to Judge Walter King Stapleton of the United States Court of Appeals for the Third Circuit. In 1991-92, he served as a law clerk for former Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit. He then served a one-year fellowship with the Solicitor General of the United States, Ken Starr. In 1993, Kavanaugh clerked for Supreme Court Justice Anthony Kennedy. Kavanaugh worked alongside current Supreme Court Justice Neil Gorsuch at that time.

After his Supreme Court clerkship, Judge Kavanaugh worked for Ken Starr again as Associate Counsel in the Office of the Independent Counsel from 1994-97 and for a period in 1998. At the Office of the Independent Counsel he served as the principal author of the Starr Report to Congress on the Monica Lewinsky-Bill Clinton and Vincent Foster investigation. In 1997, Judge Kavanaugh became a partner at the law firm of Kirkland & Ellis where he worked primarily on appellate and pre-trial briefs in commercial and constitutional litigation and prepared pro bono briefs in Several Supreme Court cases. He left the firm in 2001 to work in the White House.

From 2001-03, Judge Kavanaugh was Associate Counsel and then Senior Associate Counsel to President George W. Bush. From 2003-06, he served as Assistant to the President and White House Staff Secretary.

In July 2003, President George W. Bush nominated Judge Kavanaugh to the U.S. Court of Appeals for the District of Columbia Circuit. He was confirmed by the Senate on May 30, 2006.

Judge Kavanaugh has also taught courses at Harvard law school, Yale Law School, and Georgetown University Law Center. Kavanaugh primarily taught at Harvard after being hired by Supreme Justice Elena Kagan, then dean of Harvard Law School in 2008.

The Nominee and Privacy

The Fourth Amendment

Judge Kavanaugh has authored a number of Fourth Amendment opinions which have consistently favored law enforcement and government surveillance over the privacy of individuals.

In Klayman v. Obama, Judge Kavanaugh went out of his way to set out theories to defend the suspicionless surveillance of the American public that surprised even conservative legal scholars. The case challenged the constitutionality of the National Security Agency's bulk collection of telephone metadata collection program, a program that collected call records of millions of Americans. Judge Kavanaugh issued an opinion in a decision to deny plaintiffs' emergency petition for rehearing en banc and determined that the government's "bulk collection of telephony data" is "entirely consistent with the Fourth Amendment." He set out two justifications: (1) the third-party doctrine, and (2) national security. The opinion was surprising because the denial of a petition for a rehearing en banc is a procedural matter, and rarely calls for an opinion by one of the panel members. In issuing an opinion as Judge Kavanaugh did, he not only broke with tradition but also set out views in defense of post 9-11 surveillance that no judge had previously stated. Judge Kavanaugh's tendency to elevate national security over individual privacy, in this case and broadly, may jeopardize important privacy protections established by the Supreme Court's Fourth Amendment precedents.

Judge Kavanaugh dissented in United States v. Maynard, a case that was later appealed to the Supreme Court under the name United States v. Jones. In Maynard, the D.C. Circuit majority held that the government's warrantless use of a global positioning system ("GPS") device to track the public movements of an appellant's vehicle for approximately four weeks was an unreasonable search in violation of the Fourth Amendment. Judge Kavanaugh, dissenting from the court, noted that the police's initial installation of the GPS device on the appellant's car without a warrant raised an important question over whether that installation was an "unauthorized physical encroachment within a constitutionally protected area." He found this to be an "important question [that] deserves careful consideration" while dismissing the panel opinion's reliance on the amount of information obtained by the police as a "novel aggregation approach to Fourth Amendment analysis." Without regard to the vast stores of private data collected on users these days, however, serious privacy violations might happen with no Fourth Amendment redress.

In Wesby v. District of Columbia, Judge Kavanaugh dissented from a decision denying a petition for rehearing en banc and found that the police had probable cause to arrest a group of party-goers for trespassing when the police had no evidence about their state of mind. Writing for the majority in United States v. Burnett, Judge Kavanaugh determined that the police had probable cause to search a rental car for heroin based on defendants' travel activity. In United States v. Washington, he held that police officers had a reasonable fear for their safety during a traffic stop when defendants ran the stop sign, and that their search of defendants' car thus does not violate the Fourth Amendment.

Writing for the majority in a panel opinion in United States v. Askew, and dissenting from a rehearing en banc of the same case , Judge Kavanaugh found it reasonable for the police to unzip the jacket of a suspected armed robber to facilitate a show-up even though the unzipping would neither establish nor negate his identification as the robber. In United States v. Spencer, he ruled for the police and held that their search of defendant's house was permissible under the Fourth Amendment.

In all his authored Fourth Amendment opinions, Judge Kavanaugh has sided with government surveillance and police search without any exception, even when serious privacy violations exist. This disregard for Americans' privacy is a threat to our democracy and treasured civil liberties. It could also jeopardize the important privacy protections established by the Supreme Court's Fourth Amendment precedents.

The Nomination Process

President Donald J. Trump Announces Intent to Nominate Judge Brett M. Kavanaugh to the Supreme Court of the United States, The White House (July 9, 2018)
Trump Announces Brett Kavanaugh as Supreme Court Nominee: Full Video and Transcript, N.Y. Times (July 9, 2018)
Questionnaire for Nominee to the Supreme Court: Brett Kavanaugh, U.S. Senate Committee on the Judiciary (July 21, 2018)
Judge Brett Kavanaugh: Confirmation Documents, U.S. Senate Committee on the Judiciary (Aug. 15, 2018)

The Nominee as White House Associate Counsel and Staff Secretary

Judge Kavanaugh's years in the White House encompassed a period that witnessed a dramatic increase in government surveillance programs in the United States, some of which were revised or scrapped after their true scope became known. Programs such as the warrantless wiretapping program, Total Information Awareness, airport body scanners, passenger profiling, and the passage of the PATRIOT Act and the REAL ID provisions sparked widespread public opposition.

On July 27, 2018, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) sent a letter to the George W. Bush Presidential Library and Museum to request Judge Kavanaugh's records when he served as White House counsel and documents related to his nomination to the U.S. Court of Appeals for the D.C. Circuit. The request did not include records from the period where Judge Kavanaugh served as Staff Secretary, but EPIC's lawsuit has revealed over a thousand emails Kavanaugh sent or received about surveillance.

White House Counsel (2001-2003)

From 2001-03, Judge Kavanaugh worked as Associate and then Senior Counsel to President George W. Bush. There he assisted in the effort to pass the PATRIOT Act and drafted a statement that President Bush incorporated in the bill signing. Kavanaugh wrote that the PATRIOT Act will "update laws authorizing government surveillance," which he claims, and President Bush then restated, were from an era of "rotary phones." In fact, the PATRIOT Act weakened numerous U.S. privacy laws, including the subscriber privacy provisions in the Cable Act and the e-mail safeguards in the Electronic Communications Privacy Act. Both laws were enacted after the era of rotary phones. In an e-mail exchange, Kavanaugh wrote that the PATRIOT Act was a "measured, careful, responsible, and constitutional approach . . . ."

President Bush issued the first authorization for the warrantless wiretapping program on October 4, 2001. The program was grounded in legal memos written by John Yoo, a Deputy Assistant Attorney General in the DOJ's Office of the Legal Counsel. One of these memos, titled "Constitutional Standards on Random Electronic Surveillance for Counter-Terrorism Purposes," was dated September 17, 2001. That same day, Kavanaugh sent Yoo a message, asking: "Any results yet on the 4A implications of random/constant surveillance of phone and e-mail conversations of non-citizens who are in the United States when the purpose of the surveillance is to prevent terrorist/criminal violence?" EPIC's lawsuit revealed that Kavanaugh and Yoo's email conversation continued, but the contents of these emails have not been made public.

While working in the office of White House Counsel, he also worked on the nomination and confirmation of federal judges, including the successful nomination of Chief Justice John Roberts and the unsuccessful nomination of Miguel Estrada. He also assisted on legal policy issues affecting the tort system and worked on the Enron scandal. Some notable policy issues include terrorism insurance, medical liability, class action reform, victims' compensation, and airline liability. He worked on separation of powers issues and various ethics issues. He also worked on litigation matters involving the White House.

White House Staff Secretary (2003-2006)

From 2003-06, Judge Kavanaugh worked as Staff Secretary and Assistant to President George W. Bush. As Staff Secretary, Judge Kavanaugh played a key role in controlling the flow of documents in and out of the Oval Office and circulating documents to senior administration officials for comment. According to Rajesh De, former Staff Secretary to President Obama, the staff secretary "is the last person to review, comment on, or adjudicate differences with respect to material sent to the president, and may need to synthesize or explain differing points of view on issues of significance." Judge Kavanaugh has stated that his time serving as Staff Secretary was "the most interesting and most instructive" to his work as a judge and "those experience helped make [him] a better student of the administrative process, a better interpreter of statutes."

EPIC's lawsuit revealed emails that show that Kavanaugh was a key defender of the warrantless wiretapping program after the program became public. The emails show that Kavanaugh offered several legal justifications for the warrantless wiretapping program after the program was revealed to the public. Kavanaugh collected analysis from Orin Kerr and Cass Sunstein and precedent from the Clinton administrations in support of the program. Kavanaugh also highlighted a portion of Justice White's concurrence in Katz v. United States that would not require courts to scrutinize a President's justification for warrantless surveillance if it is based on national security.

Kavanaugh downplayed his role in the defense of warrantless wiretapping in written responses to questions from Sen. Durbin after his 2006 confirmation hearings. Kavanaugh wrote that, after the New York Times story broke, "the President [spoke] publicly about the program on numerous occasions and I have performed my ordinary role as Staff Secretary with respect to staffing the President's public speeches." Kavanaugh's uncritical view of warrantless surveillance has permeated into his work on the bench. While on the D.C. Circuit, Kavanaugh wrote separately in Klayman v. United States to endorse the NSA’s bulk telephone record collection program based on an unspecified “national security need.”

EPIC's lawsuit has also revealed that Kavanaugh exchanged many emails about the Patriot Act as Staff Secretary. The emails show that Kavanaugh was involved in drafting and approving fact sheets and speeches justifying the surveillance authorities. The contents of the emails, however, are largely redacted.

The Nominee's Writings

Judge Kavanaugh has authored hundreds of decisions, concurrences, and dissents while serving on the D.C. Circuit, many of which are detailed above. He has also written several scholarly works and articles in major news publications:

Congress and the President in Wartime, Lawfare (Nov. 28, 2017) (book review of David Barron's "Waging War: The Clash Between Presidents and Congress, 1776 to ISIS").
With Bryan A. Garner et al., The Law of Judicial Precedent, Thompson West (2016).
Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (book review of "Judging Statutes," by Robert Katzmann).
With Robert J. Bittman & Solomon J. Wisenberg, To Us, Starr Is an American Hero, Wash. Post (Nov. 15, 1999).
Opinion, Are Hawaiians Indians? The Justice Department Thinks So, Wall St. J. (Sept. 27, 1999).
Letter to the Editor, Indictment of an Ex-President?, Wash. Post (Aug. 31, 1999).
Letter to the Editor, Starr Report, N.Y. Times (Aug. 1, 1999).
Letter to the Editor, We All Supported Kenneth Starr, Wash. Post (July I, 1999).
Letter to the Editor, First Let Congress Do its Job: A Deep Structural Flaw in the Independent Counsel Statute, Wash. Post. (Feb. 26, 1999).
The President and the Independent Counsel, 86 Geo. L.J. 2133 (1998).

Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings

Judge Kavanaugh also delivered several public statements that have been published:

From the Bench: The Constitutional Statesmanship of Chief Justice William Rehnquist (American Enterprise Institute 2017). This is a published version of a September 18, 2017, speech at the American Enterprise Institute.

Keynote Address: Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017). This is a published version of a February 23, 2017, speech at Notre Dame Law School.
One Government, Three Branches, Five Controversies: Separation of Powers Under Presidents Bush and Obama, Marquette Lawyer Magazine (Fall 2016). This is a published version of a March 3, 2015, speech at Marquette University Law School.
The Judge as Umpire: Ten Principles, 65 Cath. U. L. Rev. 683 (2016). This is a published version of a March 30, 2015, speech at the Catholic University Columbus School of Law.
Our Anchor/or 225 Years and Counting: The Enduring Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907 (2014). This is a published version of a November 1, 2013, speech at Notre Dame Law School.
Sumner Canary Memorial Lecture: The Courts and the Administrative State, 64 Cas. W. Res. L. Rev. 711 (2014). This is a published version of a October 1, 2013, speech at Case Western Reserve Law School.
Remarks at the Opening Session of the American Law Institute 90th Annual Meeting (2013). This is a published version a May 20, 2013, speech delivered to the American Law Institute.
War, Terror and the Federal Courts, Ten Years After 9/11, 61 Am. U. L. Rev. 1253 (2012).
A Dialogue with Federal Judges on the Role of History of Interpretation, 80 Geo. Wash. L. Rev. 1889 (2012).
Separation of Powers During the 44th Presidency and Beyond, 93 Minn. L. Rev. 1454 (2009). This is a published version of a October 17, 2008, speech at the University of Minnesota Law School.

EPIC's FOIA Request

Because of the unprecedented partisan battle over the scope of documents to be released and reviewed prior to the nomination hearings, EPIC has filed two Freedom of Information Act requests for records from Judge Kavanaugh's White House years as Staff Secretary. At issue are concerns about Judge Kavanaugh's role in the warrantless wiretapping program and the secret expansion of the Patriot Act.